States’ (And Cities’) Rights

I’ve never been a big fan of federalism–I’ve seen too much in the way of retrograde parochialism defended in the name of “states’ rights”–but as the song goes, I’m beginning to see the light. As Heather Gerken writes,

These days it’s an extraordinarily powerful weapon in politics for the left and the right, and it doesn’t have to be your father’s (or grandfather’s) federalism. It can be a source of progressive resistance and, far more importantly, a source for compromise and change between the left and the right.

As Gerken points out, the federal government is heavily dependent upon state and local officials to implement its policies. Immigration is a good example; even though immigration law comes unambiguously under federal jurisdiction, the federal government relies to a significant extent upon the co-operation of local police officers. Recently, LA Police Chief Charlie Beck announced that his force will not help the Trump administration deport undocumented immigrants. Several cities have reaffirmed an intent to be “sanctuary cities,” protecting undocumented people.

Lack of co-operation can be passive or active.

Sometimes states engaged in uncooperative federalism simply refuse to participate in federal programs, or they do so begrudgingly. Some states have refused to carry out the Patriot Act and federal immigration law. States didn’t just denounce the Patriot Act’s broad surveillance and detention rules as an attack on civil liberties. Blue and red states instructed their own officials not to collect or share information with the federal government unless there was a reasonable suspicion of criminal activity, or they forbade state officials to engage in activities inconsistent with the states’ constitutions.

Politico reports that at least 37 cities are resolute in their commitments to undocumented immigrants, even in the face of Trump’s threat to “cancel all federal funding to sanctuary cities.” None have moderated their resistance to cooperation with federal immigration officials.

States resisted the No Child Left Behind Act by manipulating testing standards and by slow-walking reforms. State recalcitrance was so great that eventually the Bush Administration threw in the towel and granted states so many waivers that the federal program was basically gutted.

Of course, that strategy won’t work when the federal action is “deregulatory;” uncooperative federalism is irrelevant when there isn’t a program to resist, and Trump’s choice of cabinet nominees signals his intent to gut much of the federal regulatory structure.

But that’s where spillovers come in. When one state regulates, it often affects its neighbors. When Texas insisted that its textbooks question evolution, its market power ensured that textbooks used in blue states did the same. When Virginia made it easy to buy a gun, guns flooded into New York City despite its rigorous firearms prohibitions. When West Virginia failed to regulate pollution, toxic clouds floated over Ohio.

But spillovers, like federalism, don’t have a particular political valence. Just as there are spillovers conservatives cheer, there are spillovers progressives celebrate. Want to know who really sets emissions standards in this country? It’s not the EPA. It’s California, which sets higher emissions standards than the federal government. Because no company can afford to give up on the California market, our cars all meet the state’s high standards.

Gerken reminds us that “states’ rights” can be deployed for progressive ends, despite regressive deployment of the tactic in the past. (According to Vox, Colorado, for example, is investigating the possibility of keeping its Obamacare marketplace even if the ACA is repealed.)

Progressives have long thought of federalism as a tool for entrenching the worst in our politics. But it’s also a tool for changing our politics. Social movements have long used state and local policymaking as an organizing tool, a rallying cry, a testing ground for their ideas.

The most remarkable example in recent years has been the same-sex marriage movement, which depended heavily on state and local sites as staging grounds for organizing and debate. That process may explain why those equality norms now run deep enough that the Supreme Court’s ruling on same-sex marriage in Obergefell — a decision that would surely have caused intense controversy not so long ago — was greeted with enormous enthusiasm in many quarters and opposed in precious few.

All of these strategies require a change in focus from progressives’ reflexive preference for top-down, uniform national policies to bottom-up activism. Those of us in (mostly blue) cities are in the best position to generate opposition to Trump’s edicts, to throw sand in the gears of his federal apparatus. In red states like Indiana, non-cooperation will require us to identify those aspects of Trump’s agenda that are most at odds with the interests of the state, and to focus our disruptive forces there.

There’s a satisfying irony to using a states’ rights mantra to protect human rights, rather than deny them. Call it karma.


  1. Thank you Sheila. This is one of the most uplifting posts you have written and it gives me hope that people really can fight back against the pending trump/pence authoritarian regime.

  2. Sorry… haven’t had my coffee yet. That is “Non-cooperation with evil is a sacred duty.”

  3. Progressives can only use the state’s rights argument when they have a progressive state government. It won’t work in Indiana because the State House historically has been, and currently is, controlled by rural Indiana. The Indiana GA has never been reluctant to restrict local control, I.e., guns and plastic bags. Am I wrong?

  4. Regarding “federalism”; “It can be a source of progressive resistance and, far more importantly, a source for compromise and change between the left and the right.”

    Until recent years (George W “election”), I was an Independent voter; checking out all candidates in both parties, their stands on issues, then making my decision who I agreed with on MOST stands before voting. Does this make me a “federalist”? Never, have I agreed with any one candidate on ALL issues as that is beyond reason. The current Republican party has forced me to take sides, to take a firm stand and vote a straight Democratic ticket every election day knowing I am supporting some Democratic candidates whose negative stand I would otherwise vote against and not supporting a few – a very few – Republican candidates I would support on their positive stand. Does this now make me “anti-federalist”? I really don’t like being boxed in.

    Today we all await the Electoral College vote on this entirely questionable presidential election; will we receive their final and legal vote or will this be pushed to the House? Apparently there is no protection in the Constitution, federal laws or in state laws to prevent the Trump fascist movement to keep moving – or is provided protection being ignored? Nor is their protection in the Constitution, federal laws or in state laws to protect Hillary from repeated investigations, with no illegal findings, the last minute direct attack by our FBI or ignoring her popular vote count – or is provided protection being ignored?

    Personally; I have dreaded this day for the past few weeks but at this time I am also grieving the death of Mayor Bill Hudnut this past weekend. The Republican Mayor of Indianapolis for 16 years who not only brought progress and pride (and the Colts) to this city but cleaned up city government, ridding it of the very issues which Trump supporters voted to put into effect on the national level. Goldsmith, contrary to his glowing (lying) comments about Mayor Hudnut in the Star today, started our local downhill slide into the current Republican mire.

    This will be an endless day for me and many others who fear our future; who fear we have no future under fascism.

  5. Don’t be afraid! Be vigilant! Be outspoken!

    Just so you know, I really hate exclamation points. If I use them I must find the topic urgent. Hamilton rationalized that the Electoral College would save us from a President like Trump, but it was actually designed to keep slave owning states happy. Don’t look for the College to be guided by their better angels. They don’t have any.

  6. JoAnn,

    I understand your fears. But you won’t have Trump/Pence fascism for at least another 30 days. These 30 days will be the telling time as we still have the Obama Administration still in office. Don’t quit now. To quote Peggy: Don’t be afraid! Be Vigilant! [and especially] Be outspoken! Remember, “It is not over until it is over.”

    “Everyone has heard of Hitler. Most know he was the dictator of Germany who caused the Second World War and the slaughter of millions of Jews. But how Hitler got power is another matter. Few understand the way in which his dictatorship came about. Because Germany was a republic when Hitler became chancellor, many assume that he was democratically elected by a majority of the German people. Such was not, however, the case [That also goes for Donald Trump]. His rise to [dictatorial] power was far more complicated and, above all, more chancy. It was, in fact, a very near thing that could have been thwarted at numerous points Much of Hitler’s story has been recounted in previous books, but no one has yet subjected to thorough scrutiny the dramatic events of the crucial month of January 1933, at the end of which Hitler became head of the German government. To tell that story is the task of this book”

    “Hitler’sThirty Days toPower” by Henry Ashby Turner, Jr. ( New York: Addison-Wesley Publishing Company, Inc., 1996)p. xi.

  7. Today I foresee (in all likelihood) the installation of a new overseer of federalism by a know-nothing and his merry band of oligarchs, ideologues and libertarian superrich. I expect to see such interpretation of federal versus state and local “rights” under the Constitution to include favoring of the Second over the Tenth Amendment on issues surrounding state and local rights in gun control even though, like politics, all shootings are local. On the other hand, I expect to see an abandonment of federal rights over state rights where control of education, health care and other human services are involved via mini-federal appropriations and a Ryan-type voucher program run by states which, unlike shootings, is a federal problem because each state will have its own political fish to fry and will result in 50 different means of administration of such programs while the Republicans on the federal level are sitting back and boasting “problem solved” when the problem is not solved but rather exacerbated by a spread of administration and the costs necessarily involved in addition (historically) to some governors’ use of such funds as cookie jars to prop up other shortages in state budgets in obedience to the holy edict of “cutting taxes.”
    Today’s headline in my local newspaper here in Florida reads as follows: “”Trump aides: Critics are using electoral vote to de-legitimize win” as though Putin, Comey, and Trump by his conduct both past and present haven’t already de-legitimized any claim he may have had to having “won.” Note the framing (which I reject). He won geography but not the vote – counties and states don’t vote. He has de-legitimized any claim to a right to govern by the will of the people, having lost by nearly 3 million votes (and counting), yet, among other things, his propaganda of diversion from what our intelligence agencies found continues unabated. He simply says that he doesn’t believe it, so case closed, because I said so. (?)
    So now we are supposed to accept policy-making by tweet or diversionary propaganda or by combination of the two and shut our mouths and muzzle our keyboards because he “said so?” Another consideration is this: If he can shut off the conversation unilaterally, then what happens when his budget director gives him bad numbers on the deficit or his defense and intelligence people tell him Putin is loading up his missiles? Does he just say “I don’t believe it” and case closed? Living under a cloud of narcissism and with a compliant media subject to his PR framing, he may not even recognize that such conduct is that of a dictator, but in the real world it is, and if we are to retain any of the blessings of our democracy, we have a duty to point that out without fear or favor today and every day.

  8. Thanks to Federalism, a country which hates government actually has so much of it.
    School districts,
    and various other quasi governmental bodies, such as parks, which have both recreation and hunting responsibilities.

    Yes, we have so much of it, and each layer costs money which comes from taxes, and we have so very many kinds of taxe……… oh, well.

  9. “It ain’t over till it’s over”
    ~Yogi Berra, legendary catcher for the New York Yankees baseball team

    My close friend, Mike, was an All-American catcher for Florida State University. He made it all the way to the majors for awhile during Spring training. He once hit a double off me.

    Now is the right time for me to come in as the “relief pitcher” in this contest, at least for the next 30 days. I’ve had more than enough time to warm-up.

  10. Forget this concept in Indiana. Hoosiers are so deeply entrenched in Koch Utopia it will take decades to undo the harm.

    It also forecasts problems for Hoosiers as young progressives leave this state for more progressive communities. It’s been happening for years and will only get worse. Refer to the book, The Big Sort.

  11. These are (or will be) tough times. America is now defined to the world as a con country like say Iran was under Saddam Hussain. Our word cannot and will not be trusted. The implications of that are profound as 250 years of diplomacy have been invested in creating the opposite reputation.

    So we as individuals and cities and counties and school districts and states have to prepare for those implications.

    Here’s what I posted on FB as a personal statement.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

    “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

  12. So, what should California, Oregon, Washington and New York and New England do? We pay most of the Federal bills now and yet have the least per vote influence.

    Succeed is emotionally tempting but absolutely impractical.

    Move towards states rights instead of our traditional all in for the Republic?

    I wish that I knew.

  13. Marv,

    I read your websites and find that you have been fighting injustice for decades. Bravo! If you have some type of ammunition stored up to start undermining the next administration of our country, I hope you have already started the fight. Let us know what we can do.

  14. Well, these explanations for citizens doing the right thing is all very nice, but the fight is just beginning. That fight will be more about the gutting of our First Amendment and other Constitutional rights by the Trump administration. They can and will gut the agencies and regulations that keep our people safe, well and safely fed, have good roads to drive on and all the rest. As one commenter said, we cannot resist something that isn’t there.

    I live in ruby-red Texas, yet Clinton “only” lost by 9% here. What is perhaps more critical to the survival of our democracy is re-writing the narrative from the progressive side of things that the rural people can understand. By that, I mean, that they understand how they’ve been getting screwed and misinformed by the people they vote for. In short, the majority of the people in the country have been betrayed by the people they elect. Those people have sold out to the monied oligarchs and have no ethical fiber left to serve their constituents. That means that we also have to find candidates who are un-corruptable and sincere.

    I know, I know… Good luck with all that. Well, to Hell with luck. I’m fighting for my country (again), but this time it’s the enemy within that needs defeating. Follow how we’re doing on

  15. You’re mixing apples and oranges, Sheila. In our constitutional system, states have whatever power is not reserved exclusively for the states. Cities and other local governments are an entirely different animal. Unlike states, local government has no independent sources of power in our U.S. Constitution. They are merely subunits of states and can only do whatever states decide to let them do, either via a grant of power in the state constitution or state law.

    As far as your analysis, you discuss states as if they are subordinate to the National government and their responsibility is to carry out the national government’s wishes. That’s not the constitutional nature of federalism. States have independent power in the U.S. Constitution and only with respect to a limited area is the national government allowed to act and override that state power. And even then that’s only when national government has decided to exercise that power to the exclusion of states. The Supremacy Clause doesn’t necessarily apply unless the national government has made its intentions clear to take over an area of regulation in which both the national government and states are allowed to operate.

    During the political science classes I taught, I was very careful to say”national government” and not “federal government” when I was referring to that government in D.C. Technically “federal government” is a type of government in which one government operates in one area and another government operates in another area. (Thus our “federal government” is technically both that government in D.C. and the ones in the 50 states.) I was also careful to avoid saying “levels” of government because they’re not levels. When I drew the federal structure on the board, I did not place states below the national government but instead placed them next to each other.

    Just my thoughts.

  16. Sorry, in the sentence two I meant:

    In our constitutional system, states have whatever power is not reserved exclusively for the NATIONAL GOVERNMENT.”

    Wish there was an edit function on here.

  17. Thanks for your comments Paul. Thanks too for the suggestion of an edit function. I really need that sometimes to correct errors.

  18. Nancy,

    Thanks for the encouragement. I “started the fight” the week Donald Trump decided to run for President. Hopefully, I have enough ammo, metaphorically speaking. You have to move just at the right time or you will miss the crest of the wave.

  19. Nancy,

    The ineffectiveness of the present PROGRESSIVE NGO’s is now obvious, its wave has crested. All actions from now on will be obvious attempts of futility. All I can say is, “We better wake up to that disheartening fact; it better be fast.”

    We must disengage and explore new possibilities, the wave is in a death plunge. It is in the process of disintegration.

  20. Paul, thank you for the explanation about “national government” and clarification that “levels” donʻt actually exist. They sound more like areas or domains of government. Itʻs sad for Indiana that younger progressives are moving away for greener (pun intended) pastures. Good luck to everyone with our respective fights to maintain democracy. We will need as much as we can get.

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